Why Originalism Won’t Die

 Posted by on 21 December 2007 at 9:27 am  Law
Dec 212007

Tara Smith’s article, “Why Originalism Won’t Die – Common Mistakes in Competing Theories of Judicial Interpretation,” was recently published in the Duke Journal of Constitutional Law and Public Policy. The article abstract reads:

In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This Article examines its resilient appeal (with a particular focus on Scalia’s Textualism). By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, Dworkin’s value theory, and Judicial Minimalism), the Article demonstrates that the heart of Originalism’s appeal rests in its promise of objectivity. The Article also establishes, however, that Originalism suffers from a misguided conception of what objectivity is. All camps in this debate, in fact, suffer from serious misunderstandings of the nature of objectivity.

Happily, it’s available for free online. You can read the HTML version or download the PDF.

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